Samizdata quote of the day

Something strange just happened. Parliament has asserted itself over the Government. It doesn’t occur very often, and I can’t remember the last time the government lost a vote on a foreign policy matter. I am reminded of Viscount Cranborne‘s famous mea culpa after having been rapped over the knuckles for exceeding his authority. Like him, the executive “rushed in, like an ill-trained spaniel”, only to be chastised by the master it had almost forgotten it had.

Of course, the matter is not settled by any means. Parliament may wake up hung over and remorseful, and I’m sure the spaniel will be prowling the darkened halls of power, looking for someone to sink its teeth into, but for once it feels like we’re in a parliamentary democracy rather than an elected dictatorship.

18 comments to Samizdata quote of the day

So will Mr Cameron be surcharged for the fuel expended on sending RAF Typhoons to Cyprus? (Assuming that you can safely disregard the MoD blather about this not being connected with military action against Syria.)

This is almost like an archaeological finding, a long-lost artefact, a time when Parliament had to be consulted and the opinion of Parliament mattered. The power is strictly political, not legal, but it is a power nonetheless. Parliament may still impeach, and this power ought to be tested not only on Ministers but bureaucrats as well, it might engender some humility and caution.

Sadly the Constitution effectively died when the Harvard Law School stopped concentrating on the text and the opinions of those who wrote the text – and moved to “precedent” and (worse) “sociological jurisprudence” instead.

And that was a century ago.

It is not only philosophy that the elite betrayed long ago – it was jurisprudence also.

Indeed nothing in the humanities (the old “liberal arts”) has not been undermined by the “treason of the intellectuals”.

And it this has very practical consequences.

Such as moving the choice between peace and war away from the Legislative branch of government, to the Executive branch of government.

In defiance of both the text of the Constitution (the old Common Law way of understanding a document) and the clearly expressed intentions of those who wrote the text (the Scots or Roman law way of understanding a document).

Obama has just announced that he will seek the consent of Congress after all. Mirabile dictu. Charles Kratuhammer (a stalwart Republican, but not a consistent conservative) has (predictably) decried the switch in position, calling it “amateur hour” (as if that didn’t describe Obama’s entire soi-disant “foreign policy”) and asserting that it “looks like a president who boxed himself into a corner and is looking for a way out” (which it assuredly is, but Krauthammer seems to think that’s a bad thing). Perhaps Obama has come to the realization that unilateral action, as he originally conceived it, would violate both the War Powers Resolution and the Constitution, and would be an impeachable offence. More likely he is simply coming to the belated realization of just how unpopular the whole idea is with the general public.

Reportedly the Senate will take up debate on the matter next week (not sure how that is possible, since Congress is in recess until September 10 and Obama has not called it back into session, but I guess Harry Reid can do whatever he likes), with the House taking it up the following week. With luck, by then enough time will have passed that the clamor in some quarters (mostly within the Obama administration itself, although certain Republican “leaders” have joined in) will have abated, and enough pressure will have been put on the rank and file members of Congress by the public, that the entire enterprise will be quietly abandoned. Fingers crossed!

Also, U.N. Independent International Commission of Inquiry claims it was the rebel forces who used the gas (which said forces confirm). The Obama administration says it was Assad. Whom to believe? Hmm, tough one, that.

Laird: my name is RostrOm. That’s the one thing I always complain about.

Anyway. Yes. David Cameron is PM because a majority of MPs chose him (and Clegg for Deputy PM and the rest of the ministers). Who else did?

Cameron named ministers as Leader of the Conservative Party, to which position he was named by a majority of Conservertive MPs – all members of the Conservative caucus having previously agreed to support the choice of the caucus majority. Clegg has the same authority for the Liberal Democrats.

Neither of them have any authority they were not granted by Parliament. That authority includes the delegation of authority to other ministers, so the powers of other ministers derive from Parliament too.

Why should Parliament “assert itself” against those it chose?

One of the dangers of parliamentary government is that a parliamentary majority is an elected dictatorship. The same group commands both the power to legislate (and appropriate) and the power to execute, without check. Furthermore the requirement of party discipline creates a monolithic authority, unlike a President/Congress system where legislators have much more effective independence. That is why incidents like last week’s vote are so unusual. It’s not a bug, it’s a feature.

while it is probably not as prevalent today as it was back in the late 60s and early 70s when I began engagements involving US/UK contractual wordings, perhaps part of the difficulty is that we “use the same words to speak two different languages.”

“Her Majesty’s Government” is roughly equivalent to what we would call an “Administration” in the US. As I understand it, the monarchy in order to govern, governs “in Parliament,” by calling upon the representatives of the majority, or of the dominant minorities, representing the electorate (however determined) to form an administrative organization which is designated as her “Government,” with those administrators being designated as Ministers of the Monarchy, Governing in Parliament.

In the UK Parliament has the powers, technically, that Rostrom notes. Other constitutional systems may provide limits to parliamentary authority.

In the US, the legislative branch does not establish the administration. Those powers are designated to the executive branch within a framework specified by the legislative branch (which hasn’t been doing the greatest job on that for the past 40 or 50 years).

So, “Government” as a word means something quite different under each system.

I would take Rostrom’s view as being that Parliament establishes the facility of administration for the express purpose of exercising judgment and discretion in actions required for the absolute authority of the parliament itself. To constrain that facility, Parliament usually acts through another parliamentary mechanism, rather than by direct impedance.

Rich, I understand the source of Cameron’s power, and that “neither of them [Cameron and Clegg] have any authority they were not granted by Parliament.” But the fact that Parliament has the theoretical power to rein them in doesn’t mean that it habitually does so. Parliament may have “chosen” the government, but more often than not it simply acquiesces in what the PM and his ministers decide to do. That’s what makes this whole event so unusual (and interesting). Doesn’t the Queen have some theoretical powers, too, which haven’t been exercised since the 18th century? Wouldn’t you find it unusual if she sat up once and did so?

In the US, the federal government is the creation of the states, and the range of its powers is strictly delimited by the Constitution. But that hasn’t stopped its arrogating vast powers to itself, with rarely a peep from the states. When they do raise an objection, such as through efforts at nullification, it becomes a “man bites dog” story. Same thing.

Sorry about misspelling “Rostrom”. I think I’ve made that mistake in the past (and probably will again). Perhaps you’ll just have to change your name. 🙂

Yes Laird (and Alisa) – I would have condemned Mr Obama had he not gone to Congress (as I do when he ignores, violates, the law on everything from welfare work requirements to off shore drilling – “Executive Orders” that are contrary to Congressional Statutes are not mentioned anywhere in the Constitution of the United States, the President has no legitimate power to make law), so I must PRAISE Mr Obama for going to Congress – whatever his motives for doing so.

On the contrary Parliament was traditionally seen as a check on the government (which is why legal theorists not being concerned by the vast powers of the British Parliament – after it was not the government, it was a check on the government).

Even as late as 1911 Members of Parliament were not paid. Why should they be? They were not part of the government, they were a check upon it…..

However, YES in reality leading members of Parliament had long (in reality) been part of the government (and Parliament had evolved into more of a rubber stamp body) – how this evolved is as followers.

Back under Charles II and James II Parliament rarely sat – the King was supposed to “live off his own” (the income of the Royal estates) and taxes (other than the local Poor Rate) were very minor – a few exercise taxes to fund the Royal Navy and so on.

However, James II was a Roman Catholic – and was an ally of Louis XIV of France.

Louis XIV was a tyrant – and it was feared that James II would become one.

So there was the invasion, coup or Revolution (depending on how one looks at it) of 1688.

In the post 1688 settlement taxes were needed to fund the (basically perpetual) war with France – and Parliament began to sit every year (although M.P.s were still only in London for a few days a year and for a few hours a day – it was a bit like the Texas State Legislature).

The next major change was the coming to power of King George I (in 1715 if I recall correctly).

George could not even speak English – it was impossible for him to really govern (he was just the nearest non Catholic with a claim in the throne).

So leading members of Parliament had to take over the day-to-day government of the country.

Some Members of Parliament had already sat in the King’s (or Queen’s) Cabinet – but the Monarch was always in the Chair.

With George that was not practical – as he would not be able to follow the discussion (not being able to speak English). So he did not tend to go to Cabinet meetings.

After the collapse of the South Sea Bubble in 1720 the only leading politician (Members of Parliament were already starting to be thought of as “politicians” – please note) not to be implicated was Sir Robert Walpole.

Walpole became a minister – and (as he had no real rivals – for the first time in history) he started to be called (at first as a joke) as the “Prime Minister”.

Walpole dominated British politics for the next 20 years (although he did suffer defeats – for example his plan to replace taxes on imports with a general domestic sales tax was defeated) and even his whims tended to become law.

For example, many plays mocked Walpole (not the King – Walpole) so Walpole set up a system of censorship of plays (which lasted till the 1960s – yes the 20th century), Parliament did not defend the freedom of the theatre – Parliament had become dominated (most of the time) by a minister. Parliament had become co-opted into the government (it was no longer really apart from it).

The next major step was under Pitt the Younger.

Pitt changed the HOURS Parliament (and the number of days Parliament sat – again wars with France were the reason, Parliament had to be full time, as if it was part of the GOVERNMENT) – that may seem like a small thing, but it is not.

By increasing the number of days that Parliament sat – and making it sit late into the night, Pitt undermined the position of “knights of the shires”.

People who really were a check on government – because they could only come to London for a few days a year (having landed estates to run), serious businessmen were in a similar position.

They could not spend their lives in London – boozing to the early hours of the morning with Pitt and co.

Kights of the Shires (and serious businessmen) could still be ELECTED to Parliament (and many were) – but they could not normally take a really powerful role in Parliament (they just could not afford all the time).

The British Parliament (which represented Scotland as well as England from 1707 and Ireland also from 1801) was no longer like the Texas State Legislature – one could no longer have a real life outside Parliament and, at the same time, expect to be important within Parliament – Parliament was now (more and more) part of the government.

The next major change was the expansion of the franchise – in 1832, 1867, 1884 and 1918.

There had always been some seats where there were a lot of voters (Westminster and Preston spring to mind) – but in most seats only a few people had the vote.

One could know them personally – and they could know their Member of Parliament.

This is why such writers as Blackstone were so relaxed about the vast powers of Parliament – not only was Parliament not the government (it was supposed to be a check upon it), but how could Parliament be a threat to property when it was dominated by VOTERS who were men of property?

For example, when Edmund Burke was thrown out of Bristol (for supporting free trade with Ireland) he was quickly given a seat in Parliament by a leading landowner – so that his voice could be heard.

In the new world – the world of vast electorates (now tens of millions of people) and party machines, this would no longer be the norm.

A mass electorate (millions of human beings) can only vote on party IMAGE – they can have no real knowledge of the candidate as a person (what they truly believe and so on).

For example, the people who voted for Barack Obama mostly do not have a clue about his background or beliefs.

They only know his IMAGE – as presented in the press and so on.

With a large franchise this is inevitable.

Although democrats (small “d”) seem to have no real grasp of it.

In the United States the Senate (elected by State Legislatures – choosing candidates they knew personally) was supposed to deal with this problem.

However, the United States Senate fell in 1913.

Now the idea that the Senate represents the States is as dead as the idea that the Electoral Collage chooses the President.

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